BILL NUMBER: AB 634	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  JANUARY 7, 2010

INTRODUCED BY   Assembly Member Harkey

                        FEBRUARY 25, 2009

   An act to amend Section 831.7 of the Government Code, relating to
liability.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 634, as amended, Harkey. Hazardous recreational activities.
   Under existing law, public entities and public employees are
generally not liable to any person who participates in various
hazardous recreational activities, as defined, including, but not
limited to, certain water contact and diving activities, kayaking,
surfing, waterskiing, white water rafting, and windsurfing. 
These provisions do not limit liability that would otherwise exist
for damage or injury suffered in any case where permission to
participate in the hazardous recreational activity was granted for a
specific fee. 
   This bill would include  any form of 
self-contained underwater breathing apparatus (SCUBA) diving among
these hazardous recreational activities.  The bill would
provide that the exception to this provision allowing liability where
a specific fee is charged does not include a fee or surcharge
levied, charged, or collected for SCUBA diving access to an
artificial reef created or placed in cooperation with the state or
any political subdivision thereof, and operated by a 501(c)(3)
nonprofit public benefit corporation. The bill would provide that any
person participating in those SCUBA diving activities does so at
their own risk. 
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 831.7 of the Government Code is amended to
read:
   831.7.  (a) Neither a public entity nor a public employee is
liable to any person who participates in a hazardous recreational
activity, including any person who assists the participant, or to any
spectator who knew or reasonably should have known that the
hazardous recreational activity created a substantial risk of injury
to himself or herself and was voluntarily in the place of risk, or
having the ability to do so failed to leave, for any damage or injury
to property or persons arising out of that hazardous recreational
activity.
   (b) As used in this section, "hazardous recreational activity"
means a recreational activity conducted on property of a public
entity that creates a substantial, as distinguished from a minor,
trivial, or insignificant, risk of injury to a participant or a
spectator.
   "Hazardous recreational activity" also means:
   (1) Water contact activities, except diving, in places where, or
at a time when, lifeguards are not provided and reasonable warning
thereof has been given, or the injured party should reasonably have
known that there was no lifeguard provided at the time.
   (2) Any form of diving into water from other than a diving board
or diving platform, or at any place or from any structure where
diving is prohibited and reasonable warning thereof has been given.
   (3) Animal riding, including equestrian competition, archery,
bicycle racing or jumping, mountain bicycling, boating, cross-country
and downhill skiing, hang gliding, kayaking, motorized vehicle
racing, off-road motorcycling or four-wheel driving of any kind,
orienteering, pistol and rifle shooting, rock climbing, rocketeering,
rodeo,  self-contained underwater breathing apparatus (SCUBA)
diving,  spelunking, sky diving, sport parachuting, paragliding,
body contact sports, surfing, trampolining, tree climbing, tree rope
swinging, waterskiing, white water rafting, and windsurfing. For the
purposes of this subdivision, "mountain bicycling" does not include
riding a bicycle on paved pathways, roadways, or sidewalks. For the
purpose of this paragraph, "body contact sports" means sports in
which it is reasonably foreseeable that there will be rough bodily
contact with one or more participants. 
   (4) Any form of self-contained underwater breathing apparatus
(SCUBA) diving including, but not limited to, recreational diving,
technical diving, deep water diving, wreck diving, and penetration
diving. SCUBA diving is recognized as an inherently hazardous
activity involving risks of decompression sickness, embolism, or
other hyperbaric injuries that may require treatment in a
recompression chamber and diving on shipwrecks or overhead
environments involves further possible hazards related to drowning or
entrapment. Any person SCUBA diving on any vessel placed as an
artificial reef in cooperation with the state or any political
subdivision thereof, and operated by a 501(c)(3) nonprofit public
benefit corporation does so at his or her own risk. 
   (c) (1) Notwithstanding subdivision (a), this section does not
limit liability that would otherwise exist for any of the following:
   (A) Failure of the public entity or employee to guard or warn of a
known dangerous condition or of another hazardous recreational
activity known to the public entity or employee that is not
reasonably assumed by the participant as inherently a part of the
hazardous recreational activity out of which the damage or injury
arose.
   (B) Damage or injury suffered in any case where permission to
participate in the hazardous recreational activity was granted for a
specific fee. For the purpose of this subparagraph, a "specific fee"
does not include  either of the following: 
    (i)     A 
a  fee or consideration charged for a general purpose such as a
general park admission charge, a vehicle entry or parking fee, or an
administrative or group use application or permit fee, as
distinguished from a specific fee charged for participation in the
specific hazardous recreational activity out of which the damage or
injury arose. 
   (ii) A fee or surcharge levied, charged, or collected for SCUBA
diving access to an artificial reef created or placed in cooperation
with the state or any political subdivision thereof, and operated by
a 501(c)(3) nonprofit public benefit corporation. 
   (C) Injury suffered to the extent proximately caused by the
negligent failure of the public entity or public employee to properly
construct or maintain in good repair any structure, recreational
equipment or machinery, or substantial work of improvement utilized
in the hazardous recreational activity out of which the damage or
injury arose.
   (D) Damage or injury suffered in any case where the public entity
or employee recklessly or with gross negligence promoted the
participation in or observance of a hazardous recreational activity.
For purposes of this paragraph, promotional literature or a public
announcement or advertisement that merely describes the available
facilities and services on the property does not in itself constitute
a reckless or grossly negligent promotion.
   (E) An act of gross negligence by a public entity or a public
employee that is the proximate cause of the injury.
   (2) Nothing in this subdivision creates a duty of care or basis of
liability for personal injury or damage to personal property.
   (d)  Except as provided in paragraph (4) of subdivision
(b), nothing   Nothing  in this section limits the
liability of an independent concessionaire, or any person or
organization other than the public entity, whether or not the person
or organization has a contractual relationship with the public entity
to use the public property, for injuries or damages suffered in any
case as a result of the operation of a hazardous recreational
activity on public property by the concessionaire, person, or
organization.